Step by Step - Guide to Becoming a Whistleblower?
Who can Apply?
The most general principle when it comes to Whistleblowing both in the healthcare industry and beyond is the fact that anyone can blow, as long as you have credible evidence or information about misconduct or illegal activities. In healthcare, whistleblowers play an important role in stopping healthcare fraud by bringing forward a case under the federal False Claims Act, the Stark Law, physician self-referrals, or the Anti Kickback statute. This often entails Medicare or Medicaid fraud, and other healthcare fraud that costs the government money. The fraud is committed in order to gain certain financial benefit, or to out-gun the competition, or outright mistreatment, maltreatment or misrepresenting something to either or the patient or the government or related insurance companies. Here are some examples of people who commonly blow in the healthcare industry:
- Employees: The most common healthcare whistleblower comes from that of an employee. This includes current, former or even at-will employees of healthcare organizations such as hospitals, clinics, pharmaceutical companies, medical device manufacturers, and insurance providers. It can involve physicians, nurses, administrators, researchers, technicians, and other staff members who have firsthand knowledge of wrongdoing.
- Patients or Families of a Patient: Patients and especially families of patients are often exposed to misconduct or wrongdoing on behalf of a clinic, hospital or other healthcare professional places. Individuals who have received medical treatment or services and have evidence of fraudulent billing, medical malpractice, or other forms of misconduct may act as whistleblowers. One way to report this misconduct is reporting your experience and supporting documentation of your visit or treatments
- Government Employees: This includes current, former or even at-will employees of healthcare workers at agencies responsible for overseeing healthcare, such as health departments, regulatory bodies, or law enforcement, who can act as whistleblowers if they come across misconduct during their duties.
- Contractors and Consultants: Individuals who work with healthcare organizations as contractors, consultants, or vendors may also have access to sensitive information and can report misconduct if they become aware of it.
These are not the only types of whistleblowers in the healthcare industry, just the most common. In many cases researchers and scientists, regulatory and compliance personnel and even just mere observers of the healthcare facility can whistleblow. The most important thing to remember is that you have credible evidence and information of misconduct or wrongdoing.
While whistleblowing is strongly encouraged in the healthcare industry they're a handful of limitations and exceptions to be mindful of before blowing.
- Non-Disclosure Agreements (NDAs): They're Two main types of NDA's, those written into your termination contract in the form of a confidentiality agreement or just an out right NDA that you have to sign by itself at any time at your employment at a company. Whistleblowers who have signed non-disclosure agreements as part of their employment contracts or settlement agreements may be restricted from revealing certain information. However, in some cases, whistleblowing protections can override NDAs, particularly when it comes to reporting illegal activities or public interest concerns. Even though NDA's are labeled under the exception section doesn't mean they are always exception to whistleblowing. In many cases these agreements can be broken down as typically these agreements cannot prevent an individual from reporting illegal activities. If you have evidence of illegal conduct, it may override the restrictions of an NDA. In some cases, disclosures made in the public interest may be protected, even if they violate an NDA or severance agreement. Whistleblowing laws often aim to strike a balance between protecting the public interest and honoring confidentiality obligations. However note that all states and jurisdictions have a different set of rules and protections afforded to whistleblowers so it is important to consult a lawyer before you become a whistleblower.
- Committing Crimes to Get Information: Under United States Law a whistleblower may not commit a crime to get information or credible evidence on wrongdoing and misconduct. This is a common pitfall for many whistleblowers as whistleblowers will access documents that are not authorized for their use or access. Instead report first and get the proper means of accessings those documents legally, if you're uncertain in your information gathering have a consultation with a lawyer.
- Internal Reporting Systems: One of the number one things that get whistleblower cases thrown out or lost in court is not exhaust all internal reporting systems inside a company before external reporting or filing suit. Most healthcare organizations may have specific policies or protocols in place that require employees to report concerns internally before going public with their allegations. Whistleblowers may be expected to exhaust internal reporting channels before considering external disclosure.
- Legal Privilege: In certain situations, whistleblowers may be prohibited from disclosing certain information due to legal privilege. This can include doctor-patient confidentiality that may prevent individuals from divulging confidential information obtained within those relationships. Every situation is different so it is best to consult legal counsel on your specific situation.
Before one Whistleblows it is essential to understand the exceptions or the dos and don'ts so your case is one of the 25% the Department of Justice (DOJ) takes. As well as seeking legal advice to understand any exceptions or limitations that may apply to their specific circumstances.
What evidence should I gather before whistleblowing?
You must have specific or concrete evidence of the fraud. It would be helpful to be able to identify the “who, what, where, when, why, and how” of the challenged misconduct. It is important to make sure your evidence overall supports your case as well. There are several types of documents, files, and records that could work against your case rather than for it. This is also why it is important to have a lawyer so they can help you gather credible and helpful evidence for your case. When you gather this evidence, you should not share the information with anyone but your attorney. Documentary proof is necessary to support the information that an employee reports to the authority. It can be possible that by gathering documents, the employee can break the law. This is why it is important to confirm that it is not illegal to remove certain documents from their workspace before doing so. An employee may also want to take a video or photo if they see anything unsafe or suspicious at work. Before doing this, they should know their company's policy on videos and photos just in case there are restrictions on it. Another way to gather evidence can be to record conversations. However, when recording a conversation you must know the state law for this. Some states allow people to record conversations without other participant's permissions while others do not. For example, Virginia is a “one-party consent” state, meaning that a person normally does not need another person's permission to legally record a discussion between the two. However, Maryland, demands that all parties to a conversation provide their approval before a recording of such communication is permitted.
How should I document and keep recordings of the misconduct?
First before keeping and recording documents it is important to familiarize yourself with protection and laws regarding the recording of conversations or incidents. Some jurisdictions require the consent of all parties involved before recording conversations, while others permit recording if you are a participant in the conversation. You can access this information through seeking legal counsel or “your state” and “whistleblower protection documents.” The state of Florida is a "two-party consent" state, which means that all parties involved in a conversation must give consent for it to be lawfully recorded. This generally implies that you should obtain the consent of all parties before recording a conversation. Consent can be explicit, where individuals are informed and explicitly agree to being recorded, or implicit, where it is reasonably understood that individuals consent to being recorded (for example, in public settings where there is no expectation of privacy). Therefore if the recording that you took under the table at a private business meeting like in a movie would be illegally obtained and unable to be used in most Whistleblower complaints and cases.
With that being said, after that first check is done and you have established the recordings and documents are legal, ensure that the evidence is as accurate and detailed as possible. Include relevant dates, times, locations, individuals involved, and descriptions of the misconduct. Remain objective and avoid adding personal opinions or speculations. Most importantly do not jump to conclusions, that is one of the biggest ways the DOJ will throw out your case as it isn't fully accurate as possible. For recordings ensure that you keep the original recordings intact and secure. Make backup copies to prevent accidental loss or tampering of the evidence. Consider storing the recordings in a safe place or using encrypted digital storage to protect their integrity. This will not only help strengthen your case but ensure that the evidence is going nowhere.
Remember, it's crucial to prioritize ethical conduct, comply with applicable laws, and seek legal guidance to ensure that your documentation and recordings are obtained and preserved in a lawful manner.
What to expect from your attorney?
A competent attorney specializing in whistleblowing cases should have a deep understanding of the relevant laws and regulations governing healthcare whistleblowing at the federal, state, and possibly international levels. They should be well-versed in the False Claims Act, Anti-Kickback Statute, Stark Law, HIPAA, and other pertinent legislation. They should be able to analyze your case and know exactly what laws and regulations apply to your case in order to accurately help you in the next stages of the reporting process.
Ensuring understanding about Whistleblower protection laws. Most whistleblower laws often include provisions that protect individuals from retaliation by their employers. Your attorney should educate you about these protections, including anti-retaliation provisions, remedies, and available legal options if you face retaliation for your whistleblowing activities. If you are unsure if your attorney is doing the right thing, it is never bad to get a second opinion.
Your attorney should guide you on how to gather, preserve, and document the necessary evidence to support your claims effectively. They may provide advice on the types of evidence to collect, help you organize and analyze the evidence, and ensure the evidence obtained is obtained LEGALLY.
If after meeting with your attorney, and analyzing the merits of your case, you decide to proceed forward and submit a formal complaint to the DOJ ensuring that your attorney will assist you in drafting and filing the necessary legal documents. They will ensure that the complaint is properly prepared, accurately describes the alleged misconduct, and complies with the relevant legal requirements. It is important to understand that your attorney shouldn't be the only one writing the complaint as they do not have your personal knowledge on the case. This element of personal knowledge and portraying that through your writing might be the difference between the DOJ taking your complaint or not.
Mirza Healthcare Law Partners
Ben Assad Mirza